USA v. BELANGER

Filing 17

ORDER ON MOTION TO DISMISS & MOTION TO STRIKE denying 5 Motion to Join ; granting 7 Motion to Dismiss; granting 8 Motion to Strike By JUDGE GEORGE Z. SINGAL. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA,
Plaintiff,
v.
JEFFREY BELANGER,
Defendant.

)
)
)
)
) Docket no. 2:11-cv-00009-GZS
)
)
)
)

ORDER ON MOTION TO DISMISS
& MOTION TO STRIKE
Before the Court are the Motion to Dismiss Counterclaim (Docket # 7) and Motion to
Strike Defendant’s Joinder Request (Docket # 8) by Plaintiff United States of America. As
explained herein, the Court GRANTS both motions.
I.

PROCEDURAL & FACTUAL BACKGROUND
On January 10, 2011, the United States filed suit on behalf of itself and the United States

Department of Navy against Mr. Belanger for allegedly removing scrap metal from the
Portsmouth Naval Shipyard—while working there as an employee of a private company—and
selling it without authorization to a metal yard for $16,547.72. Asserting common law claims of
unjust enrichment and conversion, the Government seeks in this civil enforcement action to
recover from Mr. Belanger the value of the scrap metal plus interest, costs and other relief as the
Court may deem just and proper. (See Am. Compl. (Docket # 13).)1
In his Answer to the Government’s initial Complaint, Mr. Belanger—who is represented
by counsel—denied all of the material allegations levied against him, asserted a counterclaim
against the Government for unjust enrichment, and alleged, pursuant to Federal Rule of Civil
1

In its original complaint, the United States asserted a single count of unjust enrichment. (See Compl. (Docket
#1).). The Government then sought leave to amend their complaint to add a second conversion count, which this
Court granted without objection on March 24, 2011. (See Order (Docket # 11); Am. Compl. at PageID # 42.)

Procedure 19, that the Government “fail[ed] to join” two required individuals—his supervisor,
Andy Collins, and co-worker, Linda Rice. (See Answer (Docket # 4) at PageID #s 10-11.)2 The
Government now moves to dismiss Mr. Belanger’s Counterclaim and strike his Joinder Request.
Mr. Belanger has opposed the Government’s Motion to Strike (see Def.’s Opp’n to Mot. to
Strike (Docket # 15)), but failed to respond to the Motion to Dismiss within the twenty-one day
period required under Local Rule. See D. Me. Loc. R. 7(b). The Court addresses each motion, in
turn, below.
II.

DISCUSSION
A. Motion to Dismiss Counterclaim
The United States has moved to dismiss Defendant’s Counterclaim for unjust enrichment,

contending that Defendant’s pleadings fail “to state a claim upon which relief can be granted.”
Fed. R. Civ. P. 12(b)(6). As Defendant has not responded to Plaintiff’s Motion to Dismiss, the
Court may simply “grant the motion without further ado, as long as it does not offend equity to
grant the unopposed motion to dismiss.” Deveney v. Story, No. 2:10-cv-00356, 2010 WL
4955726, at *1 (D. Me. Nov. 30, 2010) (citing ITI Holdings, Inc. v. Odom, 468 F.3d 17, 19 (1st
Cir. 2006); NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 7 (1st Cir. 2002)); see also D. Me.
Loc. R. 7(b) (“Unless within 21 days after the filing of a motion the opposing party files written
objection thereto, incorporating a memorandum of law, the opposing party shall be deemed to
have waived objection.”). Here, the Court need not base dismissal solely on Defendant’s waiver
because Defendant’s Counterclaim in no way states a “plausible” claim to relief. Ashcroft v.
Iqbal, --U.S.--, --, 129 S. Ct. 1937, 1949 (2009) (“To survive a motion to dismiss, a complaint

2

Neither the Counterclaim nor the Joinder Request are included in Mr. Belanger’s Answer to the Government’s
Amended Complaint, in which he instead asserts a number of additional affirmative defenses. (See Answer to Am.
Compl. (Docket # 14).)

2

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).3
“The Maine Law Court has ‘consistently held that a claim for unjust enrichment is
established with proof that (1) the claimant conferred a benefit on the receiving party, (2) the
receiving party had appreciation or knowledge of the benefit, and (3) acceptance or retention of
the benefit was under circumstances that make it inequitable for [the receiving party] to retain
the benefit without payment of its value.’” Lariviere v. Bank of New York, Civ. No. 9-515,
2010 WL 2399583, at *7 (D. Me. May 7, 2010) (quoting In re Estate of Anderson, 988 A.2d 977,
980 (Me. 2010) (internal punctuation and additional citation omitted)). In his Counterclaim for
Unjust Enrichment, Defendant asserts the following: he “worked on a secure facility and at no
time entered or left the base without authorization;” even though it was Defendant’s job to move
containers into and out of the Shipyard, it was the Government, not Defendant, who had
responsibility for and determined what was placed in these containers; and the Government “did
not pay for the containers placed by Hong [Environmental, Defendant’s employer,] which saved
the [Government] substantial monies.” (Answer at PageID #s 10-11.) On this basis, Defendant
asserts that the Government “was unjustly enriched and is liable to account for and to pay said
amounts as determined at trial,” and “prays on his cause of action for Unjust Enrichment for the
amount unjustly enriched to be offset against all amounts owed by the Defendant as alleged
herein to be determined at trial.” (Id. at PageID # 11.)

3

The general rules of pleading require “a short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss, this short and plain statement need only “give the
defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal
punctuation and citation omitted). However, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at
555, 557).

3

The Court agrees with the Government that Defendant’s allegations simply are not
“intelligible enough to put the individual defendant on notice of the ‘who, what, when, and
where’ that underlie the” Counterclaim. Manuel v. City of Bangor, No. 09-cv-339, 2009 WL
3398490, at *3 (D. Me. Oct. 21, 2009).

Moreover, to the extent the Counterclaim can be

deciphered at all, the alleged “benefit conferred” is the benefit a third party—Hong
Environmental—provided to the Government through the supply of containers for which the
Government apparently did not pay. The pleadings never establish, however, what benefit, if
any, Mr. Belanger conferred upon the United States. See, e.g., Lariviere, 2010 WL 2399583, at
*7; Glenwood Farms, Inc. v. Ivey, 228 F.R.D. 47, 52 (D. Me. 2005). In short, Defendant’s
allegations do not create a plausible entitlement to relief.
As Defendant’s Counterclaim is insufficient to state a claim of unjust enrichment, the
Court GRANTS the United States’ Motion to Dismiss.
B. Motion to Strike Defendant’s Joinder Request
In his Answer to the Government’s initial Complaint, Defendant has also requested the
joinder Andy Collins and Linda Rice, without whom, he asserts, the “Court cannot afford
complete relief to” him, because he otherwise will be “subject to incurring inconsistent
obligations because of the interest.” (Answer at PageID # 10.) More specifically, Defendant
lays out the following:
Plaintiff is aware and has knowledge that Andy Collins and Linda Rice, both
employees of the Navy Shipyard at this time have a substantial interest and are
substantially involved in the allegations as put forth herein by the Plaintiff. Andy
Collins and Linda Rice, are both adults who work in Maine at the Navy Shipyard
at this time which is the place where these allegations occurred and are subject to
service of process and their joinder will not deprive the Court of subject matter
jurisdiction. Andy Collins was the Defendant’s supervisor who was directly
responsible for Defendant’s daily job duties on the Base and Linda Rice was a
fellow driver who worked with the Defendant at the time of these allegations.

4

(Id.) No further motion papers accompany this Rule 19 Joinder Request. (See Docket # 5.)
Pursuant to Federal Rule of Civil Procedure 12(b)(7), a party may assert, by motion, the
“failure to join a party under Rule 19.” In the absence of such a motion, the Government has
instead appropriately treated Defendant’s request as akin to the assertion of an affirmative
defense, subject to a motion to strike. See Fed. R. Civ. P. 12(f) (on motion within twenty-one
days after service of a pleading, the Court “may strike from a pleading an insufficient defense”).
The Court agrees with the Government that here the “legal insufficien[cy]” of
Defendant’s so-called Joinder Request is “clearly apparent,” and thus should be stricken.
Planalto v. Ohio Cas. Ins. Co., No. 07-142, 2008 WL 2116608, at *9 (D. Me. May 19, 2008)
(quoting 5C C. Wright & A. Miller, Federal Practice and Procedure § 1381 at 428 (3d ed. 2004);
FDIC v. Eckert Seamans Cherin & Mellott, 754 F. Supp. 22, 23 (E.D.N.Y. 1990) (noting that a
defense is “insufficient as a matter of law” if it “clearly appears” that the movant “would succeed
despite any state of facts which could be proved in support of the defense”) (citations omitted)).
Here, all that is before the Court is that the named individuals “have a substantial interest” and
“are substantially involved.” (Answer at PageID # 10 ¶24.)4

Based on the limited and

conclusory assertions contained in the pleadings, Defendant has failed to satisfy his burden of
establishing that the absent individuals must be joined pursuant to Rule 19. See 7 Charles Alan
Wright et al. Federal Practice and Procedure §1609 at 129 (3d ed. 2001) (“The burden is on the
party raising the defense to show that the person who was not joined is needed for a just
adjudication.”). For, even the most liberal of interpretations merely suggests that Mr. Collins
(Defendant’s supervisor) and Ms. Rice (Defendant’s “fellow driver”) are perhaps joint
tortfeasors—who, pursuant to the weight of authority, are permissive rather than required parties.
4

Defendant attempts to provide some further detail in his Response to Plaintiff’s Motion to Strike (see Docket # 15),
but the Court limits its analysis to the pleadings. The outcome of this Motion, however, remains the same even if
the Court were to consider the additional factual information contained therein.

5

See Temple v. Synthes Corp., 498 U.S. 5, 7 (1990) (“It has long been the rule that it is not
necessary for all joint tortfeasors to be named as defendants in a single lawsuit.”) (citations
omitted); Fed. R. Civ. P. 19 advisory committee’s note (noting the “settled authorities holding
that a tortfeasor with the usual ‘joint-and-several’ liability is merely a permissive party to an
action against another with like liability”). As suggested by the Government, “Belanger remains
free to assert his own claims against those individuals, on a permissive basis.” (Pl.’s Mot. to
Strike at PageID # 26.). And, of course, in the event that this case goes to trial, Defendant could
always defend himself by asserting that these absent individuals ought to bear full responsibility.
In short, Defendant has failed to establish that Mr. Collins and Ms. Rice are Required
Parties pursuant to Rule 19, and the Government’s Motion to Strike is GRANTED.
III.

CONCLUSION
For the reasons explained herein, the Court GRANTS the United States’ Motion to

Dismiss Counterclaim (Docket # 7) and hereby DISMISSES the only counterclaim asserted
against the United States.

The Court also GRANTS the United States’ Motion to Strike

Defendant’s Joinder Request (Docket # 8) and thereby DENIES Defendant’s Motion for Joinder
(Docket # 5).
SO ORDERED.

/s/ George Z. Singal
United States District Judge
Dated this 27th day of July, 2011.

6